The lewd practice of “upskirting” — the surreptitious videotaping of a person’s private parts in a public place — cannot be prosecuted as a crime in Georgia, the state’s Court of Appeals has ruled.
The court recently arrived at that conclusion when overturning an invasion-of-privacy conviction against former grocery clerk Brandon Lee Gary, who took videos up a woman’s skirt while she was shopping. The Georgia court found, as have other courts across the nation, that decades-old laws simply did not envision criminal acts committed with modern technology.
“It is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct,” Judge Elizabeth Branch wrote for a 6-3 majority. “… The remedy for this problem, however, lies with the General Assembly, not this court.”
The ruling throws out the felony conviction against Gary, 24, who in June 2013 used his cell phone to take videos from under a woman’s skirt as she walked the aisles of a Publix in Houston County.
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According to court records, the woman, while getting milk, first noticed Gary bending down behind her as if he were tying his shoe. Even though that made the woman feel uncomfortable, she talked with Gary about an item she was looking for. On another aisle, as the woman grabbed an item off a shelf, she turned around and saw Gary bending down behind her again, this time with his cell phone out and its camera pointed up under her skirt.
The upset shopper left the store but soon returned and complained to the store’s manager. A review of the Publix security camera showed that Gary aimed his phone’s camera underneath the woman’s skirt at least four times as she walked the aisles. Gary was indicted six months later, was eventually convicted and sentenced to five years on probation.
Gary’s lawyer, public defender Michael Rivera, said the appeals court reached the right decision.
“While what Mr. Gary did was objectionable, there’s not a law on the books that outlaws this specific act,” he said. “This case is a testament to the Court of Appeals interpreting a law the way it was written and not engaging in judicial intervention.”
Chuck Spahos, head of the Prosecuting Attorneys Council of Georgia, said Houston County District Attorney George Hartwig has asked DAs across the state to support a legislative change that would solve the problem. Spahos also said his group will draft legislation and look for a sponsor to carry the bill in next year’s General Assembly.
State Rep. Rich Golick, who chairs the House Judiciary Non-Civil Committee, said he would welcome a proposal. “I think our constituents certainly see awful conduct like this as an invasion of privacy, and if we need to update the law to reflect that, then that’s certainly what we will do,” he said.
In recent years, legislatures in Massachusetts, Texas and New Jersey have enacted new laws that specifically criminalize “upskirting” — today’s version of a peeping tom offense.
Gary was convicted under Georgia’s invasion of privacy law, which makes it illegal for anyone, without the consent of all those involved, “to observe, photograph or record the activities of another which occur in any private place and out of public view.”
Branch, appointed to the appeals court bench in 2012, said “private place” does not refer to a specific areas of a person’s body. Rather, it refers to a physical location out of public view and where a person can expect to be safe from intrusion or surveillance.
Because Gary recorded his video in a store that was “open to the public,” he did not record activities in a private place out of public view, Branch wrote.
Judge Amanda Mercier, joined by Judges Herbert Phipps and John Ellington, disagreed and said the law clearly criminalizes taking photos up a woman’s skirt without her consent.
“The activity recorded in this case was the activity of the private areas of the victim’s body covered by clothing while she walked and shopped,” Mercier wrote. “As the victim’s genital area was not exposed to the public, it was out of public view and the victim had a reasonable expectation of privacy in the area under her skirt.”
But Eugene Volokh, a UCLA law professor who has written about “upskirting” laws, said he believes the court’s majority got it right.
“This was obviously bad, bad behavior and it’s behavior that can be criminalized,” he said. “But under Georgia law, it’s not a crime because it didn’t occur in a private place. A private place could clearly be a closed stall inside a restroom or somewhere inside someone’s home. But it’s not a public grocery store.”